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Dissuasion watch

5 February, 2010 (22:06) | Internet, law & order, proposals | By: Aerar

(German version published on 27 Oktober, 2009)

Now also from me some small thoughts about the dissuasion madness. The last bigger case was the negative PR which Jack Wolfskin produced with its dissuations (German). Before them it were the president of the DFB Theo Zwanziger (German), the Deutsche Bahn (German), Jako (German) and others who attracted attention.

Dissuations are a legitimate measure for a claimant (e.g. a holder of a trademark) to notify the presumed injuring party of its misbehaviour and to claim to stop it. It is not unusual that the dissuation is connected with the request for a declaration of cease and desist. As such notifications cause costs, the claimant, who has not done the misbehaviour, in additions wants to charge the fees for the dissuation.

In many cases when private persons or very small companies are affected it are these fees which make the dissuation so painful. Often the aggrieved party was simply not aware of its malpractice and is ready to accept that, to immediately stop it and to never do it again. Assumingly they would also agree to pay for the damage they inflicted if that would be stated properly and understandable to them. But alone with the fees of the dissuasion the inflicted damage already is far above any acceptable amount. The original idea to notify a wrongdoer and stop the wrong behaviour as soon as possible is unnecessarily supplemented by a forestalled punishment. In addition the accused has not the financial power to defend himself in case he thinks that he was wrongly accused. So a dissuation can easily be misused to stop even correct behaviour by threatening with high costs. In addition “clever business men” can use mass dissuations as a charter to earn money by dissuating as many people as possible.

In my opinion it would be a good rule that before sending a dissuation a free hint had to be sent. If that free hint would lead to the end of a misbehaviour the claim of a serious claimant would be fulfilled without producing extra costs. This idea is neither new nor complicated – it just had to be set into practice. Of course it can still be allowed to fight against a notorious misbehaviour with a prompt dissuation – otherwise some parties would continuosly behave wrong and wait for their free notice before they would stop it. But in the current state dissuations are a timebomb for small parties which may go off with any (critical) public statement. In many case this would frighten people to state their opinion and stop them to say anything to any dangerous theme. So dissuations may have the effect of a censorship.

In the last blog post (link no longer found) I read about the matter, the discontent on the current practice is about the same as it is with me. Nevertheless I can not agree with every passage stated there. Some indicate that there is a basic misunderstanding on both sides concerned the measure of dissuation:

Da das ganze Spiel für große Unternehmen ohne Risiko ist – selbst die Verfahrenkosten, falls es denn überhaupt zu einem Prozess kommt, zahen sie locker aus der Portokasse.

(my translation: “As the game is without any risk for big companies – even the process costs in case they lose would not hurt them”)

The last cases I mentioned in the beginning did show that the risk for big companies has extremely risen due to the increasing influence of the blogoshere. This is even more if the company is directly in contact with consumers. Even if in addition in the named cases the general claim has been questioned, above that the procedure of threat and pressure used by the direct dissuasion has been criticized. So thanks to the increased alertness of the public dissuasions are a game without risk just for dubious companies anymore.
Nevertheless also companies with a fair claim need a fair chance to enforce their rights. If they have the ethical right or just the juridical right would lead to the need to discuss trademark and copyright law in general.

Wenn der Jahres-Umsatz mit dem beklagten Artikel(n) in jedem Jahr des Rechtsstreites unter dem Streitwert gelegen hat, trägt der Kläger unabhängig vom Ausgang des Prozesses alle Verfahrenskosten.

(my translation: “If the business volume with the articles in question has in every year been lower than the jurisdictional amount of the proceedings the claimant in any case will pay the jurisdictional amount.”)

No, this is not about “amnesty” for violating rights and not always the claimant is the bad big business with tons of money but in many case they are freelancers fighting for their income and livelihood. This is just about making the first dissuation free of charge. If the accused party thinks himself having the right on its side or by other reasons ignores or denies dissuations the following procedure should not be changed.

Auch die Höhe des Abmahnungsbetrages darf sich nicht ausschließlich an den Kosten des Anwälte orientieren, sondern muß die wirtschaftliche Lage des Abgemahnten mit einschließen. Selbst das Strafrecht berücksichtigt das Einkommen bei der Festsetzung von Geldstrafen.

(my translation: ” Also the amount of the dissuation fee should not just be fixed by the cost of the lawyer but needs to include the economical situation of the accused. Even the criminal law considers the income when setting fines.”)

This makes the matter more complicated but is worth thinking of. Just, who will pay then? And what is a fair fine? I pledge to call this a sub discussion – if the first dissuation would be free of charge we do not need to discuss this point.

Nur eine mögliche Verwechselungsgefahr rechtfertigt noch keine Abmahnung: Der Kläger muss eine Täuschungsabsicht des Beklagten nachweisen.

(my translation: “A possible danger of confusion alone does not justify a dissuasion: the claimant also have to prove the accused willingly wanted to decept other people.”)

That can not be. Who can prove or disprove the intention behind a deed? Furthermore the caused damage will not decrease by the fact that it has been inflicted by accident or ignorance.

Die bisherige Regelung legt es letztlich ins Ermessen eines Richters, ob dieser eine Verwechselungsgefahr sieht. Damit hat aber niemand Rechtssicherheit. Hier müssen klare, nachvollziehbare Regeln her.

(my translation: “The current rules let the justices decide whether there is a danger ofconfusion in a ceratin case or not. This makes the result of a law suit inpredictable to all participating paties. We need clearer rules here”)

I think, clear and understandable rules would be a good thing, too.

Ernsthaftigkeit der Verfolgung: Ein Kläger muss durch sein Vorgehen klar gemacht haben, dass er seine Rechte wirklich verteidigen will. […] Während sich nämlich Jack Wolfskin an eine Bastel-Community vergriffen hat, läßt das Unternehmen die US Sicherheitsfirma Blackwater unbehelligt Kleidung mit einem viel ähnlicheren Logo (auch in Deutschland) verkaufen:

(my translation: “A claimant has to prove that he honestly and eagerly is interested in protecting his rights […] For instance did Jack Wolfskin attack DIY communities while the US security company Blackwater sells clothing (also in Germany) having a much more identical logo”)

If that is true I just can agree. I don’t think that it is easy to evaluate “eager protecting of rights” but the named example allows doubts in the eagerness and honesty

5.) Klare Strafen für einen Mißbrauch von Abmahnungen: Für die Unternehmen, in deren Auftrag abgemahnt wird ebenso wie für die abmahnenden Anwälte.

(my translation: “Punishment for those who misuse dissuations: this could cover the claimant or its lawyers.”)

I agree with that. The legislative body obviously does not yet see the huge finacial and social damage which is caused by misusing the measure of dissuasion.